The petition for review challenges the lawfulness of an international security interview program, pursuant to which airlines flying to the United States pose certain questions to passengers before permitting them to board.
…
As relevant here, TSA has issued an “Aircraft Operator Standard Security Program (AOSSP)” that incorporates TSA-approved screening protocols. Seehttp://www.tsa.gov/stakeholders/commercial-airlines (last accessed Mar. 26, 2015). The AOSSP is designated as Sensitive Security Information under 49 C.F.R. Part 1520, and has not been publicly released. However, it is correct that, as the petition for review contends, the AOSSP sets out the requirements for air carrier screening of passengers at foreign airports before those passengers are admitted to the secure area of the aircraft and transported to the United States.

To have implemented an entirely new screening program in complete secret with passengers having no notice of a requirement to comply is absurd. To have the contents of that program be a requirement that you talk about your travel plans or face being unable to return to your home country is unconstitutional.

Shhh… this is a secret!!

How did they get away with this? By ordering the airlines to do their dirty work for them, and then marking the order as “Sensitive Security Information” (SSI), which means the airlines aren’t allowed to talk about it. This Aircraft Operator Standard Security Program (AOSSP) they speak of is a lengthy document containing security rules that airlines are required to follow but are prohibited from sharing.

However, unlike other pieces of SSI (such as the document that implemented the nude body scanners), this document not kept internal to TSA; rather it is distributed to every U.S.-flagged airline with planes over a certain size. The TSA isn’t exactly known for keeping its secrets by itself, but factor in the now thousands of employees and contractors who have access to the AOSSP, and I was fairly easily (and legally, on my end at least) able to obtain a version of it (although it would be nice if someone leaked the latest one to me :) ).

I believe the public has an interest in seeing at least portions of the AOSSP, as it effectively restricts their personal rights, and it does so without notice or meaningful opportunity for review. I gave the TSA first notice of the leak of their information (as I’ve always done, including when I published my video beating the nude body scanners and when I learned that the 11th Circuit had leaked secret documents in my case), and I may in the past, present, or future disclose what I’ve uncovered to attorneys for relevant civil rights organizations. For now, I won’t be disclosing the document or how I obtained it to allow the TSA time to plug their leak, as I believe some information that should legitimately be secret for security reasons was obtainable by me and would be obtainable by others should I disclose the method and/or the contents. (Note: The document was not sent to me by a source in confidence — if it were, I would protect the source to my greatest ability.) I do wish the government would stop relying on security through obscurity and start implementing real, non-invasive, community-reviewed security measures to keep us safe.

In the meantime, I will continue to fight against secret TSA policies that continue to erode our rights.

Want to donate to the fight against TSA assholery? PayPal or Bitcoin: 15ftA2938sp7Mnsi8U7wYVmEtd4BRbFnkT

The original case comes from 2012, when the TSA decided that it wanted to tear apart my belongings because I had the audacity to refuse to let them touch my genitals at one of their checkpoints. They spent half an hour going through the little pockets inside my pants, flipping through (and reading) pages from books that I had, looking at the names on all the plastic cards they found, and generally looking not for something dangerous, but rather for something illegal, such that they could teach me a lesson about bending over and complying. In the end, they found nothing, and kicked me out of the airport. As icing on the cake, they conspired with the airport authority to lie when I filed Freedom of Information Act requests about the incident.

One must ask how much of the Fourth Amendment is left when it is “reasonable” for the government to demand to read your papers simply because you want to travel? Does that remind you of another oppressive regime of the last century? It very much does to me.

Where to from here? If the courts think that current law allows the TSA to conduct these invasive searches that have no real correlation to transportation safety, then the law needs to change. I’ll be waiting for the Supreme Court to rule on the nude body scanner petition first, and then will work on promoting new legislation to fix what the courts should have.

This is a partially off-topic post about something very personal to me, but something I feel compelled to share because there are a couple of things that I think we can make better, and I’d like to raise awareness to those issues. First, the off-topic back story.

About a month before I published my big TSA video in 2012, I met a woman who inspired me to do a lot of things. We dated for almost a year, remaining inseparable even after the dating concluded, and started a music company together that helps me to fulfill perhaps the only part of me that brings about more passion than fighting government abuse. Andrea was an awesome partner to have, whether we were heading to a protest or weaseling our way backstage at a music festival to network with the VIPs. She always encouraged my advocacy, even acting as my process server for my suit against NYPD’s street body scanners.

We accomplished so much together despite the fact that she suffered from serious depression, which, looking back, was getting worse as time passed. Starting from very young, we’re all taught that there is help for people who are depressed. But sadly, help is often times difficult and expensive, and even when you manage to get it, it doesn’t always work. I learned that a good therapist in New York can charge $250 per hour and often doesn’t accept insurance (making weekly treatments $13,000 annually). I learned that prescribing anti-depressants is a lot like rolling a dice and hoping that the pill you takes makes you better rather than worse. I learned that even if you are hospitalized for your depression at the best psychiatric hospital in New York, there is no treatment — they literally just observe you until you feel better (or pretend to, such that you can leave).

Andrea took her own life last month. She was 38 years old.

If you saw her funeral, her Facebook, or the celebration of her life that we held for her, you would have seen that she was incredibly loved by a number of people that was shockingly large, even to me, knowing her as well as I did. But, when you’re depressed, you don’t see that. I know that I didn’t really understand depression before I me her, so let me try to explain depression as I’ve come to understand it, as someone who doesn’t suffer from it directly: Imagine watching a video of the highlights your life that contains all the good things — friendships, laughter, successes — as well as all of the bad things — loss, guilt, stress. You may have a really good life and all that bad stuff may be just a few moments of the video, but when you are depressed, all of the good parts are cut out of the video. The remainder is the bad parts, and it’s stuck playing in your head in a loop. All you see and hear are those times when you didn’t feel loved, when you made a mistake, when someone was mean to you, and a feeling of being truly alone. Your entire existence, in fact, seems to be one giant mistake, and continuing your life can only burden the world with more of your failure. The videos can’t be shut off, and you can’t even remember a time when they weren’t playing. Someone could be talking to you a foot from your face and you literally wouldn’t be able to see or hear them, because your brain is somewhere else. This is how someone like Robin Williams, a man who was loved by so many for his ability to make them feel good, a man who had the resources to do anything he wanted in his life (including obtaining the best doctors that money could buy), could reach a point of desperation to make it all stop — even at the ultimate price — and this is how one of my best friends spent the last few moments of her life.

During the funeral, there were a few people present who were surprisingly upset considering that they didn’t know Andrea all that well, and each of those people ended up telling me that they, too, suffer from depression, and that it could have just as easily been them in that casket. I think it served as a huge wake-up call to them that it’s time to seek treatment now, even though it is difficult and far from certain. I pointed out to them that Andrea could have called anyone in that room when she needed to talk, but didn’t, because no one wants to “share” their depression.

So, the first of the things that I’m hoping we can make better is to remind you (yes, YOU) that if you feel depressed, feel free to call anyone, because more people understand than you might think, and even more people are willing to listen even if they don’t understand. Now is the time to make sure you have a resource to call when you need it, and if you think you’re being a burden on people by calling them, let me assure you that I would give anything to trade this burden of Andrea’s death that I have right now for the burden of talking her through another one of her dark times. It’s also the time to get therapy or medicine if you need it, which I know is hard because finding a therapist you can trust and afford isn’t easy, and taking medicine is scary. But, you probably know if you’re at the point where it’s dangerous for you to continue without assistance, and if you’re there, now’s the time. Two great resource for finding both therapists and psychiatrists are Psychology Today and Zocdoc, both of which let you search by insurance (if you have it) and allow patients to rate their doctors. If you still need help, e-mail me and I will help you personally: jon at professional-troublemaker.com.

The second thing I want to make better is actually relevant to this blog. Andrea lived in Manhattan, and when you report that your girlfriend killed herself, emergency services comes and makes sure you’re ok, tries to comfort you, etc. No, just kidding, of course that’s not what happens… the NYPD comes and holds you as a suspect in her death. Imagine the worst possible moment of your life — losing your closest friend under the worst of circumstances — and then add to that some cops forcing you to go to the precinct and holding you for hours, leaving you in a shitty back room to think about what just happened all by yourself, with no one to talk to. Depriving someone of a shoulder to cry on in such a time has to be one of the most cruel and compassionless acts possible during the worst personal tragedy I’ve yet to encounter. In a city where someone takes their own life every 16 hours, you’d think they’d have worked out a more sensitive way to deal with things.

I’ll be researching further, but my preliminary conclusion is that the police may have had some limited right to hold me briefly under the guise of an “investigative detention” (assuming for a moment that merely reporting a death gives rise to “reasonable suspicion” that you may have caused the death) but case law seems to indicate to me that 1) the duration of the hold, and 2) the forced change of location, violated my rights. Should my further research confirm, I’ll be filing my newest lawsuit within a month or so, as no one else should have to go through what I did and have their tragedy compounded by the police.

I started this blog about 4.5 years ago with a simple, 5-page complaint stating that imaging my body as a condition of flying violates my rights. The case was filed in a U.S. District Court, then went to a U.S. Court of Appeals, then denied a U.S. Supreme Court review, then back to the Court of Appeals, and now, back to the Supreme Court. If they refuse to hear my case, litigation around the body scanners is over: my case can’t proceed and a challenge from anyone else would be time-barred. If they accept it, it will be a few more years before anything is final, as we work through the Supreme Court arguments process and then (hopefully) end up back in the Court of Appeals. In the meantime, of course, the government is free to continue to abuse our rights.

The petition is fairly simple and really brings up only two issues:

The government had successfully argued that since things bounced around between courts as described above, by the time my case finally got to the right place, it was too late to hear the claim. One should not lose their right to challenge the constitutionality of government policies simply because there was a dispute as to the court to hear the claim, especially since in this case, the policy was issued in secret and therefore there was no way to determine the proper court in advance.

The courts below never allowed me any opportunity for discovery, or any other fact-gathering process, and so they basically decided the case based on the government’s cherry-picked reasons as to why the body scanners are necessary and effective. This one-sided process doesn’t meet due process requirements.

Last month I wrote about an experience I had in December where, before flying from London to New York, I was required to answer questions by an airline security contractor who would then put a “sticker” on my passport to indicate that I had been cleared. Having someone look at my passport and put a sticker on it was nothing new: I assume many airlines would want to make sure that a passenger has the appropriate travel documents to fly to their destination because the airline may be liable for fines if they transport inadmissible passengers. What was new was that the questions asked had nothing to do with my documents or my flight, but were personal questions: Why was I traveling? How long had I been away? etc.

What I encountered in Heathrow was rather reminiscent of the TSA’s “Screening of Passengers by Observation Techniques” (SPOT) program it had run domestically. SPOT was premised on the idea that terrorists probably look visibly nervous and can be identified by talking to them. The program wasted nearly a billion dollars before the Government Accountability Office reported that there was no evidence that the program had any efficacy whatsoever. But, passengers could refuse to participate in SPOT and still be allowed to fly, while the security contractor in London told me that I was required to comply. So I wrote to American Airlines, the airline who hired the contractors, and got a reply:

Ah, so these contractors aren’t merely placed there by the airline, they are “controlled by DHS/TSA.” I was not surprised, despite being in a foreign country. So let’s ask TSA what happens if they get a call from an airline stating that someone has declined to participate in these security interviews:

To recap, the airline and government is admitting here that there is a program to interview travelers as a condition of flying. I had never heard of such a thing before. Did I have my head in the sand?

Try a Google search. I challenge you to find a single article, announcement, press release, warning, or other indication that the ability to come home would be contingent on telling the TSA why you wanted to travel, written before I published my story last month. There’s nothing, and that’s because, as the TSA also admitted, the program is conducted entirely in secret, using the pseudo-classification of Sensitive Security Information (SSI).

U.S. citizens have the right to re-enter their home country. We also have the right to remain silent when interacting with government officials. The TSA has secretly tried to trick us into picking only one of those two rights. I instead pick both, as well as my right to petition my government for redress, and have filed suit today against the TSA. I’ve asked four federal judges to rule that the program is an unconstitutional violation of our Fifth Amendment rights and to enjoin the TSA from forcing airlines to hire interrogators to sit outside international gates.

Four federal judges, you ask? The TSA was given special rules for jurisdiction over challenges to certain types of TSA decisions known as “orders.” Orders are challenged in front of 3-judge panels of the Court of Appeals, whereas any other TSA assholery is challenged in front of a U.S. District Court judge. Since the international security interview program is a secret, it can’t be determined whether it qualifies as an “order” or not, and if you accidentally file in the wrong court, you’ll be out of time to file in the others. So, my petition was filed simultaneously in the district court covering the airport where I was flying to (the Eastern District of New York) and the appellate court in my home district (Eleventh Circuit Court of Appeals). Double filing fees and double paperwork means that the TSA can’t evade review by claiming that the program is, or is not, an “order” depending on what suits their mood.

It’s not often that I learn something completely new about TSA policies, but I was definitely caught off-guard last month when I was told at London Heathrow that I was required to answer some questions in order to board my flight to New York by airline security contractors. Half asleep from a day and a half of flying prior, I encountered the first in the AAdminal’s Club, who I, at first, paid no attention to, but when questions changed from, “Where are you flying?” to “Was your trip for personal or business purposes,” and “Where were you since you left America,” I asked if the questions were necessary, and was told yes. I refused, was referred to an AAdmiral’s club employee, and was allowed on my way.

The purpose of having this security guy in a lounge turned out to be “convenience.” As I got to my gate, I learned that some passengers had “stickers” on the back of their passports, meaning they had completed one of these so-called “security interviews,” and if I had complied in the lounge, I would have had a sticker. So, being stickerless, another security contractor starts interviewing me, this time asking only 2 questions: where I was flying, and how long I’d be staying there. I gave him a funny look, and he said, “Oh, you live there,” put a sticker on my passport, and let me through.

I immediately complained to AA via e-mail (before I was even in the air), and the next day I had a response that the security interviews in London were TSA-mandated. I asked them to clarify what the procedures were and what happens if a passenger refuses, and was told the procedures were Sensitive Security Information (SSI) and I should contact the TSA. So, I did.

Today, a few weeks later, the reply from the TSA is that security interviews are required as a part of the airline’s TSA-approved security program, that they are indeed SSI, and that failure to comply would result in being denied boarding.

I’m leaning towards filing suit against this policy. Here’s why:

First, it should be clarified that this is *NOT* a border search, a search by Customs & Border Patrol (or their internationl equivalent), or an airline/airport security procedure (the TSA’s phrasing it as the airline’s security program neglects the fact that they forced them to adopt such a program). This is the TSA forcing you to answer questions before you can return. It turns out that not even CBP can force you to answer your questions, if you’re a U.S. citizen.

As an American, I have several rights that cannot be exercised together as a result of this policy. The right to remain silent, the right to travel, and the right to be re-admitted to my homeland are all clearly defined. The TSA is now basically saying, “pick two.” (But, I choose all three, thanks.)

This program is entirely secret. Google for “international security interviews TSA” and see what you get. It’s all about domestic stuff relating to Pre-Check and trusted traveler programs. The contents of this program, as admitted by the TSA and airline, are SSI, have never been disclosed to the public, and even surprised a frequent international traveler and TSA troublemaker like myself. (I’ve had the “sticker” before, but I had never thought anything of it because they had never asked anything more than was printed on my boarding pass.)

My flight was returning home to my family on Christmas day. If the second interviewer had asked the same questions as the first, I would have again refused and been denied the ability to see my family on a holiday because of a secret interview of which I had no notice of a requirement to comply. I don’t want that to happen to me or anyone else in the future. I shouldn’t have to guess whether “none-of-your-business” type questions will be forced on me as a condition of traveling internationally.

Finally, this has to be one of the most useless security measures ever. Like the TSA’s somewhat-abandoned SPOT program, all one need do to defeat it is calmly lie — or print out a sticker in advance.

So, what do you guys think? Is a lawsuit in order here? I’d also love to hear any interesting stories if you’ve been through one of these interviews.

My Supreme Court petition has been re-filed after correcting the “insufficiently thick covers” complained of by the clerk’s office. I also wrote a letter to the Chief Justice to politely remind him that it’s 2015 and that the Supreme Court is behind all other federal courts, save for the Foreign Intelligence Surveillance Court (FISC) as I wrote about on My NSA Records, regarding modernizing filings and public access to court documents. Stuff like “accept electronic filings,” and “if paper filings are necessary, 8.5″ x 11″ paper should be acceptable.”

The Supreme Court should be an example to all other courts of the right way to accept filings, and instead is the most obscure. Let’s hope that John has a moment to read my letter.

About a year and a half ago, a story broke where two women were “cavity searched” on the side of the road on suspicion of having drugs. That suspicion was based on no actual evidence, of course — just “a hunch” by the officers, which proved to be mistaken. A female police officer literally bent these women over on the side of the road and placed her fingers inside of these women’s vaginas (and no, she didn’t even have courtesy to change gloves between the two searches). The state settled a lawsuit for $185,000, and a grand jury indicted the female officer. She eventually plead guilty and was sentenced to a slap on the wrist.

First, I’m impressed with the online community that the school has built. Their integrated online platform connects forums, video lectures (both live and recorded), course materials, chat sessions for Q&A, and more, which allows every student and faculty member to meet and engage with each other.

NWCU’s Online Platform

I was concerned that not going into a school would mean that I would be essentially “on my own,” but what they’ve got going on more than meets expectations.

Second, I’m impressed with the format and content of the courses. Courses run for a year and four are taken simultaneously. The basic plan for every course is that there are case books (which are, as you might expect, big thick books containing highlights of the important cases relating to a particular area of law), outlines (books that walk you through the legal concepts one must understand for a particular area of law), and supplemental resources that must be read (or listened to, in some cases) over the course period. There are a few assignments to be turned in and graded for each course, and a final exam. After the first year, there is also a state exam to pass (the California “Baby Bar“), and after the fourth and final year, of course, the actual California bar exam.

Given the state tests, there is no room for screwing around. If you haven’t studied enough to bring you to where a first year law student at a full-time law school would be, you’re done. Which brings me to the third point, which is also something I like: the study is very, very self-paced. The assignments are all known to you at the beginning of the course and have pretty generous deadlines, but it’s up to you to keep track of. If you’re the kind of person who can study daily when nothing is due for a couple of months, you’ll be great, but if you don’t and try to leave it all to the last minute, it will be literally impossible. With freedom comes responsibility, and at this point in my life, I appreciate not being micro-managed by professors. Would I have been able to keep on top of my law school game when I was 22? Probably not, and I suspect most of the students at NWCU are not fresh out of college. My work with the TSA is also a distinct advantage in that most of the legal terms, and many of the concepts, are already quite familiar to me. If this were all completely new, I’d have to take things a lot slower.

The verdict: so far, I’m extremely happy with my decision. I’d recommend the program to anyone interested in a law degree, with the caveats that: 1) you have to press yourself forward, without hand-holding, every day for 4 years or you will fail, which may not be for everyone, and 2) if your aspiration is to work at a big law firm, they’ll probably still prefer the “big name school” — but working in a big law firm seems about as pleasant as chewing on broken glass, and there are so many people out there who need representation who, with a little business skill and creativity, you can find on your own.

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